Tag Archives: prosecutorial misconduct

New evidence has emerged reinforcing the contention that Reggie Clemons’ trial was marred by misconduct; a judge’s recommendations are expected by June 1 (Photo Credit: Color of Justice).

On March 18, the final oral arguments in the “Special Master” investigation of Reggie Clemons‘ case were held in Independence, Missouri. Reggie Clemons was sentenced to death in 1993 after a disturbingly flawed investigation and trial.

At the Clemons hearing before Special Master Judge Michael Manners last September, evidence of police brutality and prosecutorial misconduct in his case was presented, and this month that evidence was reinforced by new testimony of a bail investigator named Warren Weeks.

In a video-taped deposition, Weeks said that he saw evidence that Clemons had been brutalized – a golf-ball sized bump on his head – and that he submitted a written report of this observation. Weeks testified that prosecutor Nels Moss attempted to intimidate him about the report. The report obtained by Clemons’ current attorneys and presented to Judge Manners had the word “bump” or “bruise” scratched out.

Update 10/3: Terrance Williams had his stay of execution upheld. The PA Supreme Court, despite the participation of its chief judge with a flagrant conflict of interest, affirmed his stay of execution, and will at a later date consider last week’s ruling in a Philadelphia court that Williams should get a new sentencing hearing because of serious prosecutor misconduct.

The judge in that ruling cited prosecutors for suppressing evidence that Williams committed his crime in response to being sexually abused, a motive that would likely have caused the jury to issue a sentence other than death. Today the PA Supreme Court agreed to take its time reviewing that decision, and so state prosecutors will have to put the brakes on their strangely zealous pursuit of Williams’ execution – an execution the victim’s widow and 5 members of the jury don’t want anyway.

On October 3, Pennsylvania was scheduled to execute Terrance Williams. He was sent to death row for killing Amos Norwood, a man who repeatedly sexually abused him as a teenager. Evidence of this motive appears to have been withheld from his defense.

Had the jury heard that the killing was in response to years of sexual abuse, it’s likely they would have voted for a sentence other than death. That’s why Philadelphia Common Pleas Court Judge M. Teresa Sarmina has granted a stay of execution. She also granted a new sentencing hearing for Terrance Williams, writing that “Evidence has plainly been suppressed“. She also wrote that prosecutor Andrea Foulkes was “playing fast and loose.” and “had no problem disregarding her ethical obligations”.

Of course, the state may appeal this decision to the Pennsylvania Supreme Court. They shouldn’t, and this execution should be called off permanently.

The Special Master hearing to review the Reggie Clemons case was halted on Thursday, but with more testimony and legal filings to come. In fact, the Special Master process looks to continue well into next year. Given what’s at stake, and given the troubling nature of the case, taking more time is not a bad thing.

The allegations of police brutality and prosecutorial misconduct which feature prominently in Amnesty International’s report on the case were highlighted during the hearing. The alleged police abuse of Clemons, and the similar abuse of the state’s star witness Tom Cummins – acknowledged by a $150,000 settlement – are particularly disturbing and call into question the fairness of the investigation and prosecution in this case.

Owen Barber shot Daniel Petrole to death in Bristow, Virginia on March 15, 2001. Barber was convicted of murder and got a sentence of 60 years. In 2002, Justin Wolfe was sent to Virginia’s death row for paying Barber to kill Petrole. But did he?

At one point in My Cousin Vinny, Vinny Gambini (Joe Pesci, down in Alabama from Brooklyn to defend his cousins in a capital murder case) decides to go hunting with the prosecutor, in the hopes of maybe sweet talking him into getting a peek at his files. When Vinny returns from the trip, he proudly tells his girlfried (Marisa Tomei) that the prosecutor agreed to Xerox and send over every single file he had on the case. Marisa Tomei is not impressed; the prosecutor has to give him the files … “It’s called discovery, #$%^&^$%!” she concludes. (She won an Oscar for saying stuff like that … )

Actually, the fictional prosecutor in “My Cousin Vinny” was being generous, providing what is called “open-file” discovery. According to a new report from The Justice Project called “Improving Prosecutorial Accountability”, most prosecutors in criminal cases don’t turn over all their files, but get to decide which pieces of evidence are relevant for the defense to see. As you might expect this often leads to unintentional – or intentional – withholding of evidence that could have helped the defense, and is the most common form of prosecutorial misconduct.

Prosecutorial misconduct is a big problem, affecting both capital and non-capital cases. In addition to withholding important evidence, prosecutors have also presented false testimony, coerced witnesses, fabricated evidence, and false statements to juries. According to the report, a 2003 study revealed at least 2,012 cases where sentences were reduced, convictions reversed or charges dropped because of prosecutorial misconduct. But the report also cites a 2007 California study which found that “judges generally do not report cases of prosecutorial misconduct to the State Bar, despite a statutory requirement to do so.”

So where’s the accountability? The report cites cases like the disbarment of the Duke lacrosse case prosecutor, and the current high-level investigation into the prosecutors of former Alaska Senator Ted Stevens, to illustrate how perhaps prosecutors should be held accountable, but also to demonstrate how they almost never are, because it’s rare for defendants to have the power or connections these folks had.

The report makes several recommendations, both for preventing prosecutorial misconduct and for holding misbehaving prosecutors accountable. For the many who have been wrongly sent to death row because of prosecutorial misconduct, and for all those wrongly convicted, this is a good start. But we have a long way to go.